Kummanaboina Nagaiah v. Kamepally(M)

: Sri. lUadiraiu Sri. Kowturu Sri. N V The Court made the foflowing: ORDER o representing Pavan Kumar Anantha Krishna --- IN T}IE.HIGH COURT FOR THE STATE OF TTLAI{GANA AT HYDERABAD THE IION'BLE SRI JUSTICE NARSING RAO NAT{DIKONDA 19 DATE: 13.0,3.2o126 Between: Kummanaboina Nagorlo;h olnd 3 others AI{I) @ttuparltht Upender Roo ornd o:nother ORDER ...Petitioners .ResPondent-s ThisCivilRevisionPetitionisfiledunderArticle22Tofthe ConstitutiorroflndiatosetasidethemarkeddocumentEx.A-l agreement cf sale dated 27'04'2017 in O'S'No'13 of2Ol7 on 17.O8.2O1g by the learned Agent to Government/District Collector, Khammam' Khammarn District' i .: l I 2of13 NNR, J cPJ 2796 2019

#2. Heard Sri Madiraju Prabhakar Rao' learned counsel representing Sri Kowturu Pawan Kumar' learned counsel for the petitioners and Srt N'V' Anantha Krishna' learned' counsel fortherespondents. Perusedtheentirematerialonrecord.

3.I.earnedcounselofthepetitionercontendedthatthe presentrevisionpetitionisfiledformarkingofadocrrmentasan exhibit, eventhoughthesameisunregisteredandinsufficiently stamped. The reasons record'ed' by the Agent to Government for admitting the document dated 27 'O4 '2017 as Ex'A- 1 is not sustainableinlaw, arrdthesaiddocumentisnotadmissiblein evidence

#4. The document, marked as Ex.A- 1, was admitted ignoring objections raised by the respond'ents' who are the defendants in the suit, regarding its marking' The said d,ocument is d'escribed as ar' agreement of sale' However' its recitalsclearlyrevealthatthenatureofthed'ocumentisthatof asaledeed. Therefore, therespondentscontendedthatsucha document, beingunregisteredandinsuffrcientlystamped., carrnot be received in*erddence. d-4 I , , a I i l : j J : ! l I i : 3 of13 M\fR, J cRP_2796 2ot9 D. Dr-rring the course of marking of documents before the Agency court, the counsel for the defendants raised a specific objectiorr to the marking of the agreement of sale dated 27'04'2077, which is said to have been executed by plaintiff No' 1 in favour of plaintiff No.2 in respect of the suit schedule property. The objection was raised on the ground that the document is not a registered one and that it is sought to be an agreement of sale, though its contents and marked rnerely as recitals d.lsclose that it is a sale deed. 6' The Agency court, after hearing the objection raised by the counser fc,r the defendant, overn-r.red the objection and herd that due to the general practice in Agency area before going for registratiorr, the executor wil go for agreement of sare and they will get the approval of poITDA and they wil registered their document ra.s per Indian Registration Act. 7' setting aside the objection raised, Ex.A-l was rnarked and on perusar of Ex'A-l, which is written in the Telugu language, reveals that the land in sy.No.T,2/AA was said to have been sold for a consideration of Rs.5,0o,ooo/-, and it is further 4of13 NNR, J cRP 2796 20t9 '!-\ recited that the entire sale consideration had been paid and possession of the property was delivered to the purchaser.

#8. The recitals in the document clearly indicate that the transaction was completed, inasmuch as the consideration was fully paid and possession was delivered. These aspects demonstrate that the so called Agreement of Sale is, in substance and for all practical purposes, in the nature of a sale deed. However, the said document was engrossed only on Rs. 100/- non-judicial stamp paper.

#9. [n view of the specific recitals indicating payment of the entire sale consideration and delivery of possession, the true nature of the document amounts to a sale deed, attracting the provisions of Section 33 of the Stamp Act, 1899, which is extracted hereunder: "Every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the samg" 5of13 NN& J cRP-2796-0t9 And als,t the Section 17 of the Indian Registration Act, l9Og, which is extracted below: "Ser; tion [7 of The Registration Act, 190g, mandates the registration of specific documents relaled to immovable property, valued at Rs.l00/_ or mon:, to ensure legal validity, prevent fraud, and record ownership charges- Key requirements include gifts of immovable property, non_ testamentary instruments creating/extinguishing rights, and leases exceeding one year." It also attracts the provisions of the Section 49 of the Registration Act, 19O8, which is extracted hereunder: "[t nundates that documents requiring compulsory registration (under Secti, tn 17) cannot affecr immovable property, confer adoption power, or be received as evidence of transactions involving that property if they remain unregistered. However, such documents art admissible for collat:ral purposes." Therefore. the provisions are thereby rendering the document compulso:rily registrable and to be proper stamped.

#10. The Court, whenever any document is produced before an authority empowered to receive evidence, and every person in charge of rr public office, except a police offlcer, is duty bound to examine the same with regard to its proper stamping. If it appears that the document is not duly stamped, such authority 6of13 I.[NR, J cRP 2796 2019 \. \ is required to take appropriate action in accordance with law for sending the document for impounding.

#11. In the present case, the Agency Court, before which the suit is pending, is undoubtedly a public oflice and is also the authority competent to receive evidence. Therefore, it squarely falls within the scope of the authority contempleited under Section 33 of the Indian Stamp Act, 1899, which mandates that any such authority must examine the document and deal with it in accorda.nce with the provisions of the Stamp Act if it is found to be insuffrciently stamped. L2. Further, having regard to the recitals in the document indicating that the entire sale consideration was paid and possession of the property rvas delivered, the document becomes one that is amenable to compulsory registration. [n such circumstances, the nature and contents of the document would attract the relevant provisions of the Stamp Act and the Registration Act, requiring proper stamping and registration before it can be admitted in evidence. 7of13 NNR, J cRP 2796 2019

#13. Tt:e learned counsel for the respondent, while making his submis:;ions, contended that the present suit is f,rled for the relief of injunction, arrd that the question of title arises only incidentally. Therefore, according to him, the parlies are not relying upon the said document as the basis of their title. It was further submitted that the document is sought to be looked into only for a collateral purpose, which is permissible under Section 49 of tht: Registration Act. L4. However, the learned counsel for the respondent also fairly submitted that, as per the settled position of law, even for the limited flurpose of looking into an unregistered document for a collateral purpose, the document must be duly stamped. In the absence of proper stamping, or in the event of a deficit stamp duty, tht: document is liable to be impounded, and unless and until thr: requisite stamp duty and penalty are paid, the document can be looked into for any purpose whatsoever. ir\., 8of13 NNN, r cRPJTe6-0te

#15. Further, in view of the judgment of this court in the case of Yeluvolu Blessy Sheeba v/s. Amgoth Anitha Nayak r , wherein held that: "The leamed counsel for the respondent- defendant placed reliance on the judgment of the combined High coun of Andhra hadesh and Telangana in syed yousuf Ari v. Mohd.yousuf and othersr, wherein also it was contended that when a document is admitted and marked as exhibit, it could not be questioned except under Section 6l in view of interdict contained under Section 36 of Indian Stamp Act, it was held that: No doubg Section 36 of the Act created an interdict to raise an objection about admissibility of document, once admitted, except under Section 61, it is the duty of the court to apply its mind about the admissibility and determine judicially but the Presiding gfficer failed to look into the admissibility of the document for want of stamp duty and penalty. Putting signature on the stamp of marking on the document cannot be considered as admission of a document in evidence. when similar issue came up before Division B"n".h of this court in w.P.No.29434 of 2or3, dated 12.02.2014, placing reliance on judgment of Apex court in RV.E.venkatachala Gounder v. Arurmigu viswesaraswami [AIR 2003 sc 454g] and v.p.Temple and another and Ram Rattan (dead) by regat representatives v. Bajranrar and others [AIR 1978 sc 1393] drawn distinction between admitting in evidence and marking of document. Marking of a document is only for convenient reference, whereas, admitting document is taking the document as evidence after apprying judicial mind. tn view of principle laid down in RV.E. venkatachara Gounders case [AIR 2003 sc 454g] and Ram Ratran (dead) by LRs case [AIR l97g sc 1393], the parties can raise objection as to admissibility of document and mere marking of t c.R.P.No.l7o 9 of 2023 t- 4b 4 9of13 NNR, J cRP i2796.0t9 do:ument for convenience of reference would not preclude the parties to rai;e objection as ro the admissibility. In RV.E.Venkatachala Goun6srs case [AIR 2003 SC 4548], the Apex Court is of the view that merely because a document is marked as exhibit an objection as to its adrnissibility is not excluded and is available to be raised even at a later sta.ge or even in appeal or revision. Similarly in Ram Rattan's case [AIR 1978 SC 1393], the Supreme Court is of the view that when the document wa; tendered in evidence by the plaintiffwhile in witness box, objection has been raised by the defendants that the document was inadmissible in evi, lence as it was not only insufficiently stamped, but also for want of registration, it was obligatory upon the leamed trial judge to apply his mirrd to the objection raised and decide the objection in accordance with law. Tendency sometimes is to postpone the decision to avoid intemrption in the process of recording evidence and therefore, a very convenient device is resorted to, of marking the document in evidence subject to ob.iection. However, would not mean that the objection as to adnissibility on the ground that the instrument is not duly stamped is judi:ially decided; it is merely postponed. In such a situation at a rater stago before the suit is finally disposed of it would none-the-less be obli;3atory upon the court to decide the objection. The endorsement made by the learned trial Judge that objected, altowed subject to objection, clea{y indicates that when the objection was raised, it was not judicially determined arrd the document was tentatively marked and in such a situation, section 36 would not attract. Though facts are different, the law laid down by the courts time and again is that to admit a document in evidt:nce the court has to apply its mind and decide the admissibility of document in evidence, judicially, mere marking for convenience of refer, mce itself would not amount to admitting the document by applying judicial mind and it is not a judicial determination as to the admissibility of document in evidence. section 35 created clear embargo against acting upon insuffrciently stamped document for any purpose. Any purpose 10 of 13 I.INR, J cRP 2796 20t9 would include collateral purpose. Even if both parties gave consent for marking insufficiently stamped document, it shall not be act upon, more particularly to enforce the right of parties under contract of sale, unless it falls under any clauses of proviso. The present document does not fall within any of the clauses of proviso to Section 35of the Act, when document shall not be acted upon admitting the same by consent would mean that it is the duty of the Court to decide admissibility of document in evidence judicially. In such situation, the bar under Section 36 of the Act would not come in the way of the parties to raise an objection as to the admissibility'of the document. ln the present case except affixing stamp giving numerical number to the possessory contract of sale as Ex.A.l, signing thereon by officer, nothing discloses about the judicial determination of admissibility of possessory contract of sale. The provisions of Stamp Act are fiscal in nature and such provisions have tb be construed strictly, at the same time, it is the duty of the office to decide or determine judicially about admissibility of the document, irrespective of objection to avoid loss of revenue to the State. In the absence of any judicial determination about admissibility of the documen! the same can be questioned at a later stage though stamp is affixed marking the document as exhibit. The High Court of Andhra Pradesh (United) in Syed Yousuf Ali's Case (cited supra) also held that: When the documents were marked as exhibits in the absence of defendant or his counsel and without considering the nature of the document by the Court, assigning exhibit number cannot be said to be admitted in evidence and interdict contained in Section 36 would not come to the aid of the party in whose evidence the document was marked as exhibit without any judicial determination, totally debaning the adversary to challenge the admissibility of document in evidence. In Vemireddy Kota Reddy's Case [2004(3)ALD 187], single Judge of this Court relied on Javer Chand and others v. Pukhraj Surana to 11 of13 NN& J cRP_27962019 conclude that marking of a document is assigning exhibit number rvithout jucicial determination would not amount to admitting document in evidence and such objection can be raised at later point oftime. Whereas, leamed counsel for the respondents placed reliance in T.I{agaratnam's case [2006 (3) ALD 838], so also lWNarasimhulu's case [1996 Law Suit (AP) 4471and Isra Fatima's case [2002 Law Suit 83111. In all the three judgments, the single Judges of this Court decided the bar contained under Section 36 of Indian Stamp Act holding that until anc unless there is a judicial determination it cannot be said that it has been admitted in evidence though it is marked. Mere marking of document itself is not sufficient and there should be judicial detr:rmination as to the nature of document and its admissibility. Further the words admitted in evidence appearing under Section 36 of the Act meirns admined after judicial consideration of objections relating to adnrissibility. [n the absence of judicial determination marking of document mechanically is an illegality. Even otherwise at any stage of the suit the Court may reject any document which it considers irrelevant or otherwise inadmissible in view of Order 13 Rule 3 CPC. r\ccording to Orderl3 Rule 3 CPC the Court may at any stage of the suit. reject any document which it considers irrilevant or otherwise inadmissible, recording the grounds for such rejection. Order 13 Rule 4 CP() prescribes an endorsement to be made on the document when a document is admitted in evidence. According to it, there shall be an endrlrsement on every document which has been admitted in evidence containing number and title of the suit, the name of the person producing the rlocument, the date on which it was produced and a statement of its having been so admitted and the endorsement shall be signed or initialled by ttre Judge. tr'lere there is an endorsement on the reverse of possessory contract of sale consisting the details under Order 13 Rule 4(lXA) to (C), l(D) is absetrt. Therefore, the document cannot be said to be admitted after I \ -- 12 of 13 -\. NNR, J cRP 2796]019 judicial determination, in such a czrse, exercising power under Order 13 Rule 3 CPC, the Court can reject any document which it considers irrelevant or in-admissible, recording reasons.

#16. Having regard to the above submissions and the settled legal position, this Court is of the view that the finding recorded by the learned Agency Court is contrar5r to the settled principles of law. The document in question ought not to have been marked as €u1 exhibit unless and until the required stamp duty and registration was paid. For the said reasons, the finding of the Agency Court marking thq document as Ex.A-l is liable to be set aside, so as to meet the ends ofjustice L7. This Court is of the opinion that the present case is a fit one wherein the document in question has to be sent for impounding by the competent authority. Accordingly, the Agency Court is directed to ensure tllat tJ'e said document is forwarded to the District Registrar for the purpose of determining and collecting the proper stamp duty and penalt5r, in accordance with law. Until such time, Ex.A-l, though already marked, need not be de-exhibited. However, the said document shall not be looked into for any purpose, nor shall it be 13 of 13 NNR, J cRP_2796_20 I 9 considereri while appreciating the facts of the case, unless and until the requisite stamp duty and penalty is duly paid' Only after paytnent of the required stamp duty and penalty' and subject to compliance with the Stamp Act, the document may be looked intc for only collateral purposes' lE. With. these obsenrations and directions, the present Civil Revision l'etition stands disposed of. There shall be no order as to costs. Miscellaneous applications, if any' \pending in this appeal shall stanrl closed. I SD/-S MALLIKARJUNA RAO ISTANT REGISTRAR ,,TRUE COPY// To

#1. TheAgent to GovernmenUDistrict Collector' 2. One CC 1.o 3. One CC r.o Sri N 4. Two CD ,lopies UC] V Anantha Krishna, Advocate [OPUC] Sri Kowturu Pavan Kumar, Advocate SECTION OFFICER , Khammam District. GNK/ABK M HIGH COURT DATED: 13/0312026 I E CRP.No.12796 of 2019 DISPOSING THE CRP tef"l 2-c t-tT I s o U * 1F, I:fr,q 1lf/E t: rt, i :,-i..r.-i '*.....".:.^